Redistricting: are we entering a second “Post Reconstruction”?

Editor’s note: from time to time we check in with redistricting expert Russ Tidwell for a status report and accompanying analysis on redistricting issues currently pending before a 3-judge Federal panel in San Antonio. Russ is great at simplifying complex legal issues into layman’s terms. Here’s his latest, with our thanks:

By Russ Tidwell

Final arguments and briefings have now been filed with three judge federal panel in San Antonio and their decision on State House and Congressional redistricting plans for the remainder of the decade could be announced soon. Now that the legislature is getting underway, this is a good time to recap what is at stake in this litigation.

The implications for Texas are significant. Minority districts restored in this litigation will likely be protected in the next decade as the baseline.

There are also national implications for curbing the continued packing and cracking of minority voters.  (Under the cloak of partisanship, Anglo legislators are diluting the voting strength of minorities by packing some into already heavily minority districts and fragmenting others into Anglo dominated districts, thus blocking them from the opportunity for proportional representation.)

There is well-established case law around redistricting that calls for creating a new minority opportunity district anytime a compact majority of a single minority group can be established (i.e., majority Black or majority Hispanic), but a combination of the two doesn’t necessarily count.

While Texas is seeing explosive growth in its various minority populations, much of that growth is not concentrated in single minority neighborhoods. Rather, much of this population has been diffused into the close-in suburbs of our major urban counties and other small cities.  Multi-ethnic communities of Hispanics, Blacks, Asians and Anglos have emerged in Mesquite, Garland, Irving, Arlington, Grand Prairie, Killeen, Waco, Sugar Land, and western Harris County.

It is literally impossible to draw compact districts here that have a majority of any single minority.

As noted in a previous post, by 2008, minority citizens in many of these naturally-occurring suburban concentrations had elected the candidates of their choice to the Texas House, and this made a difference.  The House was closely divided and all minority legislators had the opportunity to be “at the table.”

The 2010 electoral tsunami swept out the minority candidates of choice in all swing districts.  The resulting Anglo supermajority in the legislature attempted to make its status permanent by dismantling the districts that had given minority citizens voice.  Alternatively packing and fragmenting those voters was the process.  Litigation ensued.

Do those minority citizens in ethnically diverse communities have voting rights?  That is what the redistricting litigation is about in large part.  The State of Texas, in closing arguments at trial, says they do not.  The state, in effect, says that if a minority citizen cannot be drawn in to a district with a majority of the population from a single minority group, they have no other voting rights protection.  Believe it or not, that is the state’s position in federal court.

The Perez Plaintiffs published a demonstration map (view the map and view the analysis) showing eleven hypothetical State House districts in suburban Texas where this fragmentation occurred. This map reverses that fragmentation and produces eleven compact districts where minority citizens would have the opportunity to elect the candidates of their choice.

These demonstration districts have a total population of 1,834,145. Just over a million of them are Black or Hispanic (1,002,389); another 184,802 are Asian.  Almost 65% of this population is minority, yet it is impossible to draw one district in this territory that has a majority of a single minority group.  The population is too diffused.

This map would recognize voting rights for almost 1.2 million people who are disenfranchised under the state’s enacted plan.  That is the significance of this litigation.

Are there five votes on the U.S. Supreme Court to further gut the Voting Rights Act and the 14th amendment to the U.S. Constitution, as it relates to such a large group of minority citizens?  Their disenfranchisement diminishes the voice of all minority legislators in an increasingly racially polarized environment.

The New Republic recently published an article chronicling the recent effective demise of the minority legislative voice in Alabama.  The Voting Rights Act of 1965 (VRA) had created a second reconstruction in the South, which for a time led to full minority participation in the legislative process.  The article asks the question, “Are we in a second ‘post reconstruction?”

Having recently seen the movie Selma, I am reminded of the brutality of voting rights struggles in the South and in Texas.  In the early part of my lifetime both Hispanics and Blacks were denied any meaningful participation in their government.  That was only changed by the VRA and Federal Courts.

The VRA was a change in the law 50 some years ago.  Have hearts changed in the south over that fifty years?  Is the law still needed?  Well, even the Attorney General of the state of Texas formally conceded in trial in Federal Court in San Antonio that voting is still racially polarized in Texas.

The fate of minority citizens in Texas is once again in the hands of Federal Judges.

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